005-SLLR-SLLR-1986-V-2-JINAWATHIE-AND-OTHERS-v.-EMALIN-PERERA.pdf
JINAWATHIE AND OTHERS
v.
EMALIN PERERA
SUPREME COURT.
SHARVANANDA. C.J., WANASUNDERA. J.. RANASINGHE. J.. ATUKORALE. J.
AND TAMBIAH, J.
S.C. APPEAL No. 62/84.
D.C. KURUNEGALA No. 260/L.
JANUARY 21. 22. 23 AND 24. 1986.
Land Reform Law No. 1 of 1972 ss. 2. 3. 7. 18, 19, 20, 21, 278 (Amending Act No.39 of 1981), 29, 32-Land Reform Commission-Statutory declaration-Statutorydetermination-Statutory lessee-Undivided ^interests-Deeming provisions-Rule ofeiusdem generis-Land Reform (Special Provisions) Act No. 39 of 1981 s. 19(5)-Ownership-Vindicatoryaction..
The object of the Land Reform Law was to impose a ceiling on land ownershiprestricting a person’s holding to a maximum of 50 acres.s
Upon the coming into operation of the Land Reform Law No. 1 of 1972 on26.08.1972 all agricultural land in excess of 50 acres became vested in the LandReform Commission in absolute title free from all encumbrances and the former ownerbecame a statutory lessee who had to make a statutory declaration within the specifiedperiod on the prescribed form of the total extent of the agricultural land held by him assuch statutory lessee. In the declaration the required particulars had to be furnishedalong with a plan or sketch plan. The portion which the statutory lessee would prefer toretain could also be indicated.
Thereafter the Land Reform Commission makes a statutory determination specifyingthe portion or portions of the land which the statutory lessee is allowed to retain. On thepublication of the statutory determination in the Gazette the Commission disentitlesitself to any right or interest in the agricultural land specified in the statutory
determination from the date of such publication.
Where any agricultural land is co-owned. each co-owner was deemed by a statutoryfiction to own his share in the co-owned land as a distinct and separate entity for thepurposes of the Land Reform Law. Where a person or thing is deemed to be somethingit only means that whereas such person or thing is not in reality that something the lawrequires him or it to be treated as if he or it were with all the attendant consequencesand incidents. The rule of eiusdem generis does not operate to impose any limitation onthe notional situation arising from the application of the deeming provision as theenumerated classes are exhaustive of the genus.
Once the statutory determination is made the person in whose favour it was madebecomes owner of the land specified in the determination with all the incidents ofownership. The land does not then cease to be a distinct and separate entity and it does
not become once again an undivided portion oi the larger land from which suchspecified portion was carved out. By virtue of the Amending Act No. 39 of 1981 anyencumbrance which subsisted over and in respect of the undivided shares the recipientof the statutory determination held in the larger land would however be revived. Subjectto this such recipient is absolute owner of the portion of land specified in the statutorydetermination vested with the jus utendi the jus fruendi and (so far as the law does notprohibit) the jus abutendi, the right of alienation and the right to vindicate his title in anaction at law.
Cases referred to:
East End Dwellings Co.. Ltd. v. Finsbury Borough Council-[l 952] A.C. 109. 132.
Abeykoon Hamine v. Appuhamy-(1950) 52 NLR 49.
De Silva y. Coonetilleke-1193 1) 32 NLR 21.
Peeris v. Saunhamy-(1955) 54 NLR 207.
Pathirana v. Jayasundera-(1951) 58 NLR 169. 177.
Palisena v. Perera-(1954) 56 NLR 407.
APPEAL from judgment of the Court of Appeal.
E. S. Amerasinghe, P.C. with K. N. Choksy. P.C.. S. S. Ratnayake. Miss D.Guniyangoda, A. L. Britto Muttunayagam, Miss I. R. Rajepakse and Nihal Fernando fordefendants-appellants.
Dr. H. W. Jayewardene, Q.C. with L. C. Seneviratne. P.C.. Laksman Perera and Miss T.Keenawinne for plaintiff-respondent.
Cur. adv. vult.
March 19,1 986.
RANASINGHE, J.
In the village of Digama, in the Kurunegala District, lies the land calledFlensberg Estate alias Bebilawatta. It was about 234 acres in extent. Itwas purchased in February 1961, upon deed No. 226 dated28.2.1961, and attested by T. D. M. Samson de Silva, N.P., by theplaintiff-respondent, the 2nd defendant-appellant's wife the 1stdefendant-appellant, the 4th to the 6th defendants-appellants and thewife of the 3rd defendant-appellant for a sum of Rs. 1 60,000. Whilstthe plaintiff-respondent and the 1st defendant-appellant becameentitled to an undivided 1 /3 share each, the balance 1/3, it is commonground, belonged, at the time material to these proceedings, equallyto the 4th to the 6th defendants-appellants. who are all brothers, andto the wife of the 3rd defendant-appellant who is also a brother of the4th to the 6th defendants-appellants. The 2nd defendant-appellanthad, from January 1970. with the consent of them all managed thesaid estate for and on behalf of all the co-owners referred to above.
On 17.10.77 the plaintiff-respondent commenced theseproceedings before the District Court against the 1st to the 6thdefendants-appellants praying for a declaration of title to. and theejectment of the defendants-appellants from the distinct and separateextent of 50A. OR. 21P.- depicted as Lot 6 in Plan No. 2525 dated
made by W.D.B. Reginald. L.S., and produced as P8 atthe trial in the District Court-from and out of the larger land ofFlensberg Estate alias Bebilawatta of about 234 acres in extent,referred to above, on the ground: that the plaintiff-respondent isentitled to the sole and exclusive possession of the said distinct andseparate extent so depicted in Plan P8 upon the Order dated25.9.1974-which was produced at the trial as P6-made under theprovisions of sec. 19 of the Land Reform Law No. 1 of-1972: and thatthe defendants-appellants are wrongfully and unlawfully disputing herexclusive title to the said distinct and separate portion of land and arekeeping her out of possession from the said parcel of land.
The learned District Judge, by his judgment dated 18.12.1979,entered judgment for the plaintiff as prayed for; and. upon an appeallodged by the defendants-appellants, the Court of Appeal affirmed thejudgment of the District Court and dismissed the said appeal of thedefendants-appellants. The defendants-appellants have now comebefore this Court to have the aforementioned judgments set aside.
The position taken up by the defendants-appellants, who pray thatthe plaintiff-respondent's action be dismissed, briefly is that the Order,P6, relied on by the plaintiff-respondent, does not convey any title tothe plaintiff-respondent, and that, in the absence of dominium in theplaintiff-respondent in and over the extent of 50A. 21 P. described inthe schedule to the plaint and also depicted as Lot 6 in the plan P8,the plaintiff-respondent cannot have and maintain the action aspresently constituted.
The Land Reform Law No. 1 of 1972, which is the very first Lawenacted under the Constitution of 1972 by the National StateAssembly of the Republic of Sri Lanka, came into operation on
972. In its Long Title the said Law was stated to be-
"A Law to establish a Land Reform Commission to fix a ceiling onthe extent of agricultural land that may be owned by persons, toprovide for the vesting of lands owned in excess of such ceiling in
the Land Reform Commission and for such land to be held by theformer owners on a statutory lease from the Commission, toprescribe the purposes and the manner of disposition by theCommission of agricultural lands vested in the Commission so as toincrease productivity and employment, to provide for the paymentof compensation to persons deprived of their lands under this Lawand for matters connected therewith or incidental thereto.”
Sec. 2 of the said Law also proceeds to spell out the purposes ofthe said Law to be-
"to establish a Land Reform Commission with the followingobjects
to ensure that no person shall own agricultural land inexcess of the ceiling; and
to take over agricultural land owned by any person inexcess of the ceiling and to utilize such land in a mannerwhich will result in an increase in its productivity and in theemployment generated from such land."
Sec. 3(1) sets out the maximum extent of agricultural land, referredto as the "ceiling which could be owned by a person on and after thedate-which as set out earlier, was the 26th August 1972-on whichthe said Land Reform Law comes into operation, as being, in the caseof land which does not consist exclusively of paddy land, fifty acres.Sub-section (2) of sec. 3 states that any agricultural land owned byany person in excess of the "ceiling" on the 26th August 1972 shall asfrom that date "be deemed to vest in the Commission; and be deemedto be held by such person under a statutory lease from theCommission"
Sec. 4 of the said Law deals with disputes which arise betweenparties as to the ownership of any agricultural land which has, byoperation of sec. 3(2), vested in the Commission, and the manner inwhich such disputes are to be resolved. Special provisions are set outin sec. 5 to deal with persons who became owners of agriculturallands in excess of the ceiling after the date of commencement of theprovisions of the Land Reform Law.
Under and by virtue of the provisions of sec. 6, the Commissiongets absolute title, free from all encumbrances, to any agricultural landwhich becomes vested in the Commission in terms of the provisions of
secs. 3 and 5. Sec. 7 enacts that, "for the purposes of this Law"which, as stated, is spelt out in sec. 2, where any agricultural land isco-owned, each such co-owner shall be deemed to own his share insuch co-owned land "as a distinct and separate entity". Sec. 12makes provisions in regard to mortgages, leases-, usufructuaries andholders of life interest who have interests in such agricultural land.
In the case of agricultural land which is owned by private companiesor co-operative societies the shareholders are for the purposes of the'’ceiling" set out in sec. 3, deemed to own such land in proportion tothe shares held by each shareholder of such company or society.
Every person who becomes, in terms of sec 3(2) above, a statutorylessee, is required by sec. 18(1) to make, within the period specifiedtherein, a declaration, referred to as the "statutory declaration", in theprescribed form, of the total extent of the agricultural land held by himas such statutory lessee. The declaration, which is so made, must notonly furnish the particulars required by paragraphs (a) to (f) of sub-sec.
, but also be accompanied by a survey plan, or sketch mapdepicting the boundaries of the lands so declared, and also of theportion or portions, if any, which the declarant expresses a preferenceto retain. Encumbrances, if any, which are attached to such land arealso required to be set out in such declaration. A failure to make suchdeclaration or the making of a false declaration are made offences.
Upon the receipt of such declaration the Commission is required tomake what is called a "statutory declaration". Clause (a) of sub-section
of sec. 19 requires the Commission to make as soon aspracticable, such a statutory determination specifying the portion orportions of the agricultural land owned by the statutory lessee whichsuch lessee shall be allowed to retain. In making such determinationthe Commission has to take into consideration the preferences, if any,expressed by the statutory lessee as to the portion or portions of suchland that he may be allowed to retain. The Commission is empowered,before making such statutory determination, to create any class ofservitude on or over such land, to survey such land, and is alsorequired to pay such sum, as the Commission considers reasonable,to the statutory lessee to fence such land-sub-sec. (2) of sec 19.Such statutory determination so made is also required: to specify, theextent of the agricultural land which the Commission permits thestatutory lessee to retain:, to refer to a survey plan, made by the
Survey-General or under his direction, of the extent of such agriculturalland so permitted to be retained by the statutory lessee:and to specifyany servitude or encumbrance attaching to such land-sec. 21 (a), (fc>)and (c). Once a statutory determination has been so made by theCommission, the Commission is required to publish it in the Gazetteand to send a copy of it to the statutory lessee by registeredpost-sec. 19 (1) (b). A statutory determination so made.andpublished shall come into operation from the date of suchpublication-sec. 20, and "shall be final and conclusive and shall notbe called in question in any court, whether by way of writ orotherwise"-sec. 19 (1) (b). Once such statutory determination socomes into operation, "the Commission shall have no right title orinterest in the agricultural land specified in the statutory determinationfrom the date of such publication"-sec. 20.
There are two other sections in this Law, which were referred to bylearned counsel at the hearing of this appeal before this Court. One issection 29 which requires the Chairman of the Commission to notice,by publication in the Gazette and in any other manner as may bedetermined by him, "every person, who was interested in such landimmediately before the date on which such land was so vested" in theCommission, to make within a period of one month a written claim tothe whole or any part of the compensation payable in respect of suchland specifying the particulars set out in paragraphs (a) to (d) of thesaid section. The other is section 64 which provides that theprovisions of the Land Reform Law shall have effect notwithstandinganything to the contrary in the two Acts – the Rubber Estates (Controlof Fragmentation) Act 2 of 1958, and the Estates (Control of Transferand Acquisition) Act of 1972 – "or in any other law, custom orusage".
A careful consideration of the provisions of the Land Reform Law(hereinafter referred to as "this Law") which have been set out atlength earlier, in their proper sequence shows: that, with the cominginto operation of the said provisions, on 26.8.1972. the entirety ofthe agricultural land owned by a person, who is entitled to more thanfifty acres, has to be deemed to vest immediately in the Commission;that what is so deemed to vest, vests absolutely free from allencumbrances; that thenceforth the person who owned such land isdeemed to be a statutory lessee of the Commission upon the termsand conditions set out; that in the event of a dispute arising betweensuch statutory lessee and another as to the ownership of any such
land, the Commission has the power to make an interim order as towhich of them is to possess such land and the interim order so madeis to remain in operation until such time as a final order is made by acompetent court to which the Commission is required to, refer suchdispute. Thereafter such statutory lessee has to make a "statutorydeclaration" within a specified time setting out the particulars requiredto be set out, including a survey plan or sketch map depicting theboundaries of the portion or portions of the land which has so vestedand which such lessee prefers to retain. Upon the receipt of suchstatutory declaration the Commission is required to make as soon aspracticable a "statutory determination" specifying the portion orportions of the agricultural land that the statutory lessee shall beallowed to retain. Before making such a determination theCommission: shall take into consideration the preferences, if any,expressed by the statutory lessee as to the portion of land which hedesires to retain; may create any cl^ss of servitude on or over suchland; shall have the right to survey such land; shall pay the statutorylessee a reasonable .sum for fencing such portion of land. Suchstatutory determination should: specify the extent of the agriculturalland which the Commission permits the statutory lessee to retain;refer to a survey plan made by the Survey-General or under hisdirection depicting the portion of agricultural land which the statutorylessee is so permitted to retain; specify the servitudes orencumbrances, if any. which attach to such portion of land. Thestatutory determination so made must be published in the Gazette,and a copy must be sent to the statutory lessee under registeredcover. Once it is so published, the statutory determination will becomeeffective from the date of such publication, and the Commission shall,from such date, have no right, title, or interest in.the agricultural landso specified in such statutory determination.
An examination of the provisions of this Law shows that there is nodifficulty or ambiguity in the application of such provisions to a casewhere the entire extent of agricultural land was owned by one person.That is where one person, as defined in section 66 of this law, aloneowned the entirety of the agricultural land which is deemed to vest inthe Commission upon the provisions of the said law coming intooperation. Disputes, such as have arisen in this case, are said to havearisen mainly, if not wholly, because the agricultural land, which hasgiven rise to these proceedings, was owned, immediately prior to thedate on which the said Law came into operation, in common byseveral co-owners only some of whom were entitled to agriculturalland above the "ceiling" whilst the extents held by the other co-ownersfell well below such ceiling.
A consideration and a determination, at the outset, of the purposeand the object for which the Legislature promulgated this Law will benot only extremely helpful but also very necessaisy to resolve the issueswhich arise in this case. A careful perusal of the Long Title of this Lawand also the provisions of section 2 of this Law leave no room for anyconjecture or doubt whatever in regard to'this matter. Sec. 2, which isan enacting provision of this Law. sets forth, as set out earlier, verylucidly and categorically that the purpose is to set up a landCommission. The objects are stated to be twofold: to ensure that noperson shall, from and after the commencement of this Law, own anyagricultural land in excess of the ceiling fixed by this Law: to take overthe excess land owned by a person and to utilize such land in such amanner as to increase both its productivity and its capacity togenerate employment. The clear and unambiguous language ofsection 2. which is in complete harmony with that in which the LongTitle itself is couched, heralds the primary and dominant object to bethat, henceforth, no person shall, in the Republic of Sri Lanka, ownmore than fifty acres of agricultural land. The taking over of the excessland and using it is a direct and necessary consequence of theimposition of the ceiling. The utilization of the excess so taken over in ameaningful manner would in itself be a very important object of thispiece of legislation. Even so, it seems to me that the unquestionableprinciple and the predominant object sought to be achieved by theLegislature in promulgating this Law was to confine the holding ofagricultural land by a person to a maximum extent of fifty acres, andfifty acres alone. The object and policy of an Act are often the basis ofinterpretation of its provisions – Craies: Statute Law (7th Ed.) p. 92.
The statutory process so expressed is quite straightforward andsimple in its application to a person who is the sole owner of theentirety of an agricultural land which is deemed to have vested in theCommission on 26.8.1972 – the date on which the provisions of theLand Reform Law came into operation.
It is, however, necessary in this case to consider the operation ofthe provisions detailed above in regard to a person, whose extent of0 agricultural land over and above the said ceiling of 50 acres does notconstitute a distinct and separate entity but comprises only undivided
interests in a larger land, which he is entitled to only in common withseveral other persons, all or several of whom, however, do not owninterests over and above the said ceiling. Sec. 7 of this Law is theprovision which has to be resorted to in such a situation. The provisionof this section requires, by the use of a statutory fiction, the interestsof a co-owner, which would, at the time this Law comes into operationbe only an undivided share of a larger land owned in common, to betreated as a distinct and separate entity. Such an assumption is only"for the purposes of this Law". The purpose, as already stated, isprimarily to determine the extent of-the holding, of such a person sothat such holding could thereafter be restricted to an extent of only 50acres. The moment this Law comes into operation the undivided shareof a co-owner, whether he be one whose interests are over fifty acresor not, becomes, in the eye of the law, a distinct and separate entity,equal to the undivided extent he was earlier entitled to in the commonland. Such entity is, at that time, still not identified or located on theground, as distinct from the larger land. It is, at that stage, as learnedCounsel submitted, only notional, and only confined to paper. By theuse of this fiction undivided interests are treated as divided, and aco-owner is treated as the sole owner of a distinct entity, in order toset the provisions of this Law in motion. The effect of the operation ofthe provisions of see. 7 is to bring about a separation or partition ofthe undivided share of a person, who, at the time this Law comes intooperation, owns such interests in common with several others, andtransform such undivided share into a distinct and separate portion.Even though still only notional and only existing on paper, yet, the lawrequires the extent of land such person is entitled to, to be treated as adistinct and separate entity. The combined operation of the provisionsof sec. 2 and sec. 7 of this Law would result, in the case of a person,coming within sec. 3 (2), but whose interests in agricultural landcomprise, either wholly or partly, undivided share or shares of land, insuch undivided shares being converted, albeit notionally, to a distinctand separate entity, and such distinct and separate entity then beingtreated as vesting in the Commission. The undivided share of a personwould thus, in law, be considered as having ceased to exist as anundivided share, and being separated off from the undivided shares ofthe other co-owners, and booming a distinct and separate entity. Theundivided shares of the other co-owners, though they were alsoconsidered, by virtue of sec. 7, as having a distinct and separateexistence, would, where they do not come within the operation of sec.3 (2), thereafter cease to be considered as having any longer a
separate existence and would continue to be recognized as havingtheir original character of undivided shares held in common. Thedistinct and separate entity brought into being, though at that stageonly notionally and confined to paper without any identification of itsexistence on the ground, will become identified and located on theground once the provisions of sec. 18, 19 and 21 have run theiroperational course.
As has been set out above, where an agricultural land becomessubject to the provisions of this Law in consequence of its owner beingone who is entitled to land over and above the ceiling, such agriculturalland is "deemed" to vest in the Commission, and its owner is"deemed" to be a statutory lessee of such land. It is, therefore,necessary to examine the nature and scope, in law, of such a deemingprovision as section 3 (2) of this Law. In statutes the expression"deemed" is commonly used for the purpose of creating a statutoryfunction so that the meaning of a term is extended to a subject matterwhich it properly does not designate. Thus where a person is "deemedto be something" it only means that whereas he is not in reality thatsomething the Act of Parliament requires him to be treated as if hewere. When a thing is deemed to be something, it does not mean thatit is that which it is deemed to be, but it is rather an admission that it isnot what it is deemed to be, and that notwithstanding it is not thatparticular thing it is nevertheless deemed to be that thing. Where astatute declares that a person or thing shall be deemed to be or shallbe treated as something which in reality it is not, it shall have to betreated as so during the entire course of the proceeding-vide Bindra:Interpretation of Statutes (6th Ed.) pp. 91 2-914. In such a case it hasalso to be so treated as that something else with the attendantconsequences -Stroud – Vol. 2 — (4th Ed.) Words and Phrases, p.716. So too:
"If you are bidden to treat an imaginary state of affairs as real, youmust surely, unless prohibited from doing so, also imagine as realthe consequences and incidents which, if the putative state ofaffairs had in fact existed, must inevitably have flowed from or
accompanied it The statute says that you must
imagine a state of affairs; it does not say that having done so. youmust cause or permit your imagination to boggle when it comes tothe inevitable corollaries of that state of affairs".
-per Lord Asquith in the case of East End Dwellings Co., Ltd. v.Finsbury Borough Council (1). Thus where, in pursuance of a statutorydirection, a thing has to be treated as something which in reality it isnot, or an imaginary state of affairs is to be treated as real, then notonly will it have to be treated so- during the entire course of theproceeding in which such assumption is made, but all the attendantconsequences and incidents, which, if the imagined state of affairshad existed, would inevitably have flowed from it, have also to beimagined or treated as real.
The separation off of the undivided interests of one co-owner alonefrom the larger land whilst the undivided interests of the otherco-owners remain in common and undivided is a process which waspossible under the law as it existed at the time this Law came intooperation. Such a course was possible under the written law-sec. 26
(d) of the Partition Act 16 of 1951 -and also by common consentof the co-owners. Under the Partition Law the process by which adivision or separation off was effected had to be initiated by one of theco-owners. This Law seeks to bring about such division or separationoff by the operation of its express provisions, by express provisions oflaw independent of the voluntary act of one or more of the co-owners.
Sec. 64 of this Law, as set out earlier, states that the provisions ofthis Law are to prevail over the provisions of the two Acts specificallyset out therein and also of "any other law, custom or usage". "Law"would, in view of the provisions of the Interpretation Ordinance(Chap. 2) include both the written and the unwritten law.
It has been contended that the words "ahy other law" should begiven a restricted meaning eiusdem generis with the two proceedingActs, and not a wide and general interpretation which could evencover the common law principles relating to co-owners, andco-owned properties. The rule of eiusdem generis is that, whereparticular words are followed by general words, the general wordsshould not be construed in their widest sense but should be held asapplying to objects, persons or things of the same general nature orclass as those specifically enumerated, unless of course there is aclear manifestation of a contrary purpose. It is only a rule ofconstruction which enables a court to ascertain the intention of theLegislature when the intention is not clear. It should not be resortedto, for the purpose of defeating the intention of the Legislature but forthe purpose of elucidating the words and giving effect to its intention.
U will not apply where the specific words do not come under a class orcategory; nor where the whole scheme of the enactment and theobject and the mischief of the enactment do not require such arestricted meaning to be attached to the words of the general import.There must be a distinct genus or category. The specific words mustapply not to different objects of a widely differing character but tosomething which must be called a class, or kind of objects. Further, ifthe particular words exhaust the whole genus, as for instance, wherethe specific words embrace all the persons or objects of the classdesignated by the enumeration, the general words take on a meaningbeyond the class-Bindra: (6th Ed.) pp. 273, 280. 282, 285-6.
The Estates (Control of Transfer and Acquisitions) Act No. 2 of1972 is an Act "to control the transfer or ownership of Estates and toprovide for the acquisition of Estates in the national interest". An"Estate" is defined as a land or group of lands, which is not less than100 acres and is cultivated or used for purposes of husbandry andwhich constitutes a distinct and separate property whether owned byone or more persons, and declares null and void the transfer of suchEstates without the consent of the Minister. The Tea and RubberEstates (Control of Fragmentation) Act No. 2 of 1958 is an Act "tocontrol the Fragmentation" of tea and rubber estates, which have beendefined to mean rubber and tea estates of not less than 100 acres inextent. It prohibits not only the transfer of ownership of such estatesbut also the partition, whether by deed of agreement between theco-owners or under the provisions of the Partition Act through Court,of such estates without a certificate of consent from the relevantauthority specified in the Act. These two Acts deal with the transferand the partition of estates, which are 100 acres and over in extent.The definitions given therein of "transfers" exhausts all methods andkinds of alienation. Similary, the definitions of an "estate" exhaust alltypes and kinds of agricultural lands used for the benefit of thecommunity. It would, therefore, seem that there is no room for theapplication of the rule of eiusdem generis, and that the general words"any other law" must be given the widest possible meaning. Even if therule has to be applied, then the general term would take in lawsdealing with the partition of co-owned lands. Hence, if there is anyprovision of this Law which is inconsistent with any existing provisionof law dealing with the partitioning of co-owned lands, then, suchexisting provisions will have to give way. to the extent necessary togive effect to such express provision contained in this Law. The
provisions of sec. 64 of this Law cannot and must not be construed towipe out the entirety of the existing law, relating to the commonownership of lands and the partition of such co-owned lands, whichwas in existence on 26.8.1 972.
It must also be observed that there is in this Law provision for thedetermination of any disputes which may. be raised by a co-owner inregard to the title of another co-owner, who becomes a statutorylessee, to the distinct and separate entity which, in terms of sec. 7 ofthis Law, would represent the undivided share which such co-ownerowned up to 26, 08. 1972. Even in regard to the determination ofthe specific portion to be given over to a statutory lessee, who wasonce a co-owner, the other co-owners would not be without anopportunity of making representations to the Commission if theirinterests are affected. Even though there is no express provisiongranting an affected co-owner an opportunity of being heard before astatutory determination is made, yet, as the concept of determinationconnotes a hearing of affected parties, "the justice of the commonlaw" will step in and provide him with such opportunity. In terms ofsec. 27 B (1) of this Law, as amended by Act No. 39 of 1981, anyencumbrance, which attached to the statutory lessee’s undividedshare in the common land immediately prior to the date on which thedistinct and separate entity, brought into existence by the provisionsof sec. 7 as representing the undivided share of such statutory lesseein the common land, vested in the Commission, would be revived fromthe date on which the statutory determination is made under sec. 19specifying the extent of land such statutory lessee is permitted toretain. Any such encumbrance will indeed be specified in the statutorydetermination itself—vide sec. 21 (c).
It has been contended on behalf of the defendants-appellants: thatthe effect of a statutory determination published in terms of sec. 19 ofthis Law is only as set out in sec. 20: that P6. which is the statutorydetermination relied on by the plaintiff-respondent in this case,amounts only to a disclaimer on the part of the Commission: that itdoes not vest any dominium in respect of the portion of land describedin the schedule to the plaint: that P6 cannot in law be relied on asconferring any title, much less a title superior to that of thedefendants-appellants, which could be vindicated by theplaintiff-respondent as against the defendants-appellants: that thewords of sec. 20 are plain and clear and call for no interpretation
In regard to the interpretation of statutes, it is useful to recall that:there is no place for interpretation unless the words of a statute admitof two meanings: in case of ambiguity interpretation becomesnecessary as the courts have to attach an intelligible meaning toconfused and unintelligible sentences-Craies: p. 64: the primary dutyof a court of law is to find the natural meaning of the words used in astatute in the context in which they occur: where the language of anAct is clear and explicit the court must give effect to it whatever maybe the consequences as the words of a statute speak the intention ofthe Legislature-Craies Statute Law (7th Ed.) pp. 64-65: theprovisions of an Act of Parliament should not be so construed as toreduce it to rank absurdity: a meaning should not be attributed to thegeneral language used by the Legislature which would not carry out itsobject and would produce consequences which to the ordinaryintelligence are absurd; and it must be given a meaning as will carryout its objects-Craies, p. 85: if there are two interpretations of thewords in an Act which are possible, then the Court should adopt thatwhich is just, reasonable and sensible rather than which is none ofthose things: Courts will not lightly impugn the wisdom of theLegislature, and if an alternative construction, although not the mostobvious, will give a reasonable meaning to the Act and obviate theabsurdities or inconveniences of an absolutely literal construction thecourts would adopt such alternative construction-Craies. pp. 86, 90:if possible the words of an Act of Parliament must be construed so asto give a sensible meaning to them, and the words must be construedut res magis valeat quam pereat so that the intention of the Legislaturemay not be treated as vain or be left to operate in the air-Craies, pp.69, 95, 103: construction is to be made of all the parts together, andnot of one part only by itself-Bindra (6th Ed.) p. 42. Craies, p. 127:there is a presumption against alterations of the common law, and it ispresumed that the Legislature does not intend to make any changes inthe existing law beyond that which is expressly stated in, or follows bynecessary implication from, the language of the statute itself—Maxwell (12 Ed.) p. 116.
That, once the statutory determination, under sec. 19, is made, theportion of land, which is the subject-matter of such determination,ceases to have a distinct and separate existence, and becomes onceagain part and parcel of the larger common land and becomes subjectto the common ownership of all the co-owners, and that thecompensation, which becomes payable, in terms of sec. 29 of this
Law, in respect of that portion of land which has vested in theCommission as being the statutory lessee's land in excess of theceiling, has to be shared proportionately by all the co-owners of thelarger co-owned land, is a submission which was strongly put forwardon behalf of the defendants-appellants. Whilst this submission wasbeing considered it became clear, during the hearing itself, that thisproposition would entail two somewhat startlingconsequences-which learned President's Counsel for thedefendants-appellants himself accepted and described as two"oddities" -viz. that the statutory lessee, the plantjff-respondent,whose holding, under and by virtue of this Law, should be fifty acresand fifty acres only, would still be left-on the basis that the extent ofthe larger common land, Flensberg Estate referred to earlier, was 234acres, and that the undivided shares of the respective co-owners wereas set out above, and also on the footing that the 1stdefendant-appellant herself became a statutory lessee and her extentof 78 acres also vested in the Commission and she herself was thusleft only with the ceiling of 50 acres-with 59 acres: that, on the otherhand the four co-owners, the 4th to the 6th defendants-appellantsand the wife of the 3rd defendant-appellant, who were jointly entitledto the balance undivided 1/3 share, or 78 acres (with each one beingentitled to an undivided 1/12 share of 19 1/2 acres),-the totalholdings of none of whom exceeded the "ceiling", and none of whomadmittedly came within the purview of this Law – would together loseabout 19 acres (each one losing about 4 1/2 acres), having to contentthemselves, in return, with only a proportionate share of thecompensation payable in terms of sec. 29 of this Law. LearnedPresident's Counsel explained this anomalous situation as being aninevitable consequence of the express provisions of this Law andurged that such consequences should not deter the Court from givingeffect to the plain and natural meaning of the provisions-particularlysecs. 20, 29-of this Law. If, in the situation detailed above, astatutory lessee, such as the 1st defendant-appellant, had also beenentitled to agricultural land other than the co-owned land and he wasto accept the entirety of the fifty acres, which he is allowed to retain,from such other land, then the position of the other co-owners, suchas the 4th to the 6th defendants-appellants, would upon the basis ofthe said contention, be worse as they would then be deprived of aneven larger extent of land; but such statutory lessee himself would beleft with an even larger extent, well above the ceiling.
The compensation payable under sec. 29 of this Law would be poorconsolation to a person whose land is taken away by the State. Itwould be more so to one who owns only a few acres, well below the"ceiling". The blow would be most cruel and oppressive where theperson is one whom it was not the purpose and object of theLegislature to touch in any way, and the person on whom it wasprimarily intended to impose a ceiling is, on the other hand, found tobe able to add to his upper limit. The only wrong committed by each ofsuch small-holders for such unexpected predicament they would findthemselves in, would be to have owned a land in common with a largeland-owner whom the State intended, by such legislation, to affectadversely. A consequence such as this could and would never havebeen in the contemplation of the Legislature when it enacted this law.
It would clearly negative the purpose and object of this Law which hasbeen clearly and categorically proclaimed by the legislature. If another.interpretation, which would obviate such an untoward result isreasonably available, it is the duty of the Court to come down on theside of such an interpretation as would operate to promote theavowed purpose and object of the Legislature, and suppress and curethe mischief aimed against.
Sec. 29 of this Law. which is relied on strongly by thedefendants-appellants. provides for a notice calling upon "everyperson who was interested in such land immediately before the dateon which such land vested" to claim "the whole or any part of thecompensation payable under this Law in respect of such land". Henceit has been contended that, in the case of an agricultural land such asFlensberg Estate, which was co-owned by the plaintiff-respondent andthe defendants-appellants immediately prior to 26.8.1972. each oneof such co-owners would come within the category of "Every personwho was interested in such land" and as such each one of them couldclaim a proportionate share of the compensation payable by theCommission in respect of the land which has vested in theCommission. The agricultural land, which is vested in the Commissionand in respect of which compensation is payable under this section, isthe entirety of the agricultural land which the statutory lessee ownedon the day preceding the 26th August 1972, less the extent of fiftyacres which the Commission permits such lessee to retain. Applyingthe provision of this section to the facts and circumstances of thiscase, the land, in respect of which such compensation is payable,would be the extent of 78 acres, which the plaintiff-respondent was
deemed to own as a distinct and separate entity from and out ofFlensberg Estate, less the extent of 50A.OR. 21P. depicted as Lot 6 inplan P8. The said extent of 78 acres, treated as distinct and separateentity, was taken away from the plaintiff-respondent on the basis thatthe plaintiff-respondent was the owner of the said entity. No disputehad been raised by any of the other co-owners, thedefendants-appellants and the wife of the 3rd defendant-appellant, tothe title of the plaintiff-respondent to th»e said extent.of 78 acres. The50 acres, which is described in P6 and which by then has beenactually demarcated on the ground, within the said Flensberg Estate,is an extent carved from and out of the aforesaid extent of 78 acres,and given to the plaintiff-respondent as the maximum extent of landthe plaintiff-respondent will thenceforth be permitted to hold, Thatbeing the basis upon which the Commission has to act under this Law,the Legislature cannot be said to have intended that the compensationin respect of the balance extent of 28 acres, which continues toremain vested in the. Commission, be paid by the Commission toanyone other than the person from whom the entire extent of 78 acreswas taken over, though only notionally at that stage, as a distinct andseparate entity, and to whom subsequently an extent of 50 acres,carved out on the ground after a survey, done by the Surveyor-Generalor under his directions and depicted in a plan, and to fence which saidextent the Commission had to give the plaintiff-respondent a sumwhich was considered by the Commission to be reasonable for suchpurpose, was handed back by the Commission to be retained by him.Persons, who had a lien, as set out in sec. 1 2, or other similar claims,in law, in and over such land, could put forward their claims under sec.29. Any claims to such land on the basis of title would have beenresolved long before the section 29-stage is reached. Such claims, ifany, would have been resolved at the stage of sec. 4, long before thestage of the statutory determination, under sec. 1 9, is reached.
Sec. 32(1) of this Law, which relates to the actual payment ofcompensation, states that, if in response to the notice sent out interms of sec. 29, no claim to the compensation payable is receivedfrom any person, other that "the former owner" of such land, theChairman of the Commission shall cause compensation to be paid to"such former owner". The "former owner" so contemplated isobyiously the person, from whom the land, in respect of whichcompensation is to be paid, was taken over, as an entity, on the basisthat he is the owner of such land and who was thereafter treated asthe statutory lessee of such land. Where'^the entirety of an entity.
which was distinct and separate immediately prior to thecommencement of this Law, belonged only to one person there canbe no doubt. In the case of land, which was commonly ownedimmediately prior to the commencement of this Law, the "formerowner" contemplated must, in order to advance the purpose andobject of the Law, be construed to mean the person, in whose handsthe land, treated as a distinct and separate entity, was deemed to vestin the Commission, and who was subsequently permitted to retain anextent of fifty acres from and out of the said land. That person in thiscase, now before this Court, would be the plaintiff-respondent.
In the process of achieving the primary object set out in this Lawwhich, as set out earlier, was "to ensure that no person shall ownagricultural land in excess of the ceiling", the very first step taken is toconsider, as vested in the Commission, the agricultural lands "owned"by a person in excess of the ceiling of fifty acres on the specified date.The whole process begins on the basis that the person from whom theland is so taken over is the owner of such land. If any one disputes thetitle of the person, so treated as the owner, such disputes, as alreadyset out, would be gone into, and the question of the title to the saidland would be settled before the stage of the sec. 18 declaration isreached. Thereafter, when the Commission makes a statutorydetermination under sec. 19, it does so once again on .the footing thatthe statutory lessee was, in law, the owner of such land immediatelyprior to 26.8.72. It is on the same basis that the Commissionthereafter permits the statutory lessee to retain the extent of 50 acresspecified in the statutory determination, and itself retains the balanceextent of land which had already been vested in it, the Commission.The fifty acres so given back to the statutory lessee is given to him asthe maximum the statutory lessee could retain under this law. This lawalso, if not expressly, at least impliedly, assures to the statutory lesseethat no further reduction of such extent could and would take place bythe operation of the provisions of this Law. At the time the said extentof 50 acres, along with the other land then held by the statutorylessee, vested in the Commission it vested absolute title in theCommission, wiping out not only the existing title of the statutorylessee but also, where the land had, immediately prior to 26.8.72.been commonly owned, the title of the other co-owners as well. In P6.the only person referred to is the plaintiff-respondent, the statutorylessee who is "allowed to retain"-the legal significance of which saidwords will be considered later-the specific extent more fullydescribed in the schedule thereto.
Sec. 27 B of this Law, as inserted by the amending Act No. 39 of1981, states that, when a person is allowed to retain any agriculturalland in consequence of a statutory determination made under se'c. 1 9,any encumbrance, which subsisted over that land on the dayimmediately preceding the date on which that land vested in theCommission, shall be revived from the date of such determination.Thus an encumbrance which subsisted over and in respect of theplaintiff-respondent's undivided shares in the larger land would, fromand after the date on which P6 came into operation, be revived andattach to the land described in P6.
In this view of the matter, I am of opinion that the land, referred to inP6, did not, once the said determination P6 was made, cease to be adistinct and separate entity and become once again a part of the largerland called Flensberg Estate, of which it had formed a part prior to26.8.72 and which had also been subject to common ownership.
P6 the statutory determination in this case states, as set out earlier,that the plaintiff-respondent "shall be allowed to retain" the said extentof land referred to in the schedule to P6, and also fully described in theschedule to the plaint in this case. The effect of such a statutorydetermination, upon its publication in the Gazette, is set out in this Lawitself, in sec. 20. All that is stated therein is that "the Commission shallhave no right, title or interest in the agricultural land specified in thestatutory determination from the date of such publication". It is merelya renunciation of all interests on the part of the Commission. There is,in P6, no express vesting or conferment of title in theplaintiff-respondent, who is referred to in P6 as the statutory lessee, inrespect of the Land referred to in P6 and described in P6 as "theportion of agricultural land owned" by the statutory lessee and whichshe "shall be allowed to retain".
What then is the effect, in law, of the plaintiff-respondent being"allowed to retain" the land described in the schedule to P6-which isalso, as set out already, the land more fully described in the scheduleto the plaint-and further referred to as a portion of agricultural land"owned" by the statutory lessee? The order embodied in P6 is madeas the final act in the process of "ensuring that no person(plaintiff-respondent) shall own agricultural land in excess of the ceiling(5(f acres) "-vide sec. 2(a). This process had started with the takeover of agricultural land owned by the plaintiff-despondent. The land sohanded back to the plaintiff-respondent had also, prior to that, been
surveyed and-fenced at the expense of the Commission. TheCommission has renounced all claims in respect of it. No one else hasbeen granted any rights whatsoever either to, in or over such land.Against this backdrop of facts and circumstances there cannot be anydoubt but that the provisions o,f this law intended that theplaintiff-respondent alone should possess and take the income fromthe said land. Sec. 19 (5) of the Land Reform (Special Provisions) ActNo. 39 of 1981 proceeds on the basis that the consequence of astatutory determination, under sec. 19 of this Law, was to make suchperson the owner of such agricultural land. The selfsame sub-section
of sec. 19 of the said-Act No. 39 of 1981, also implies that aperson, in whose favour such a statutory determination under sec. 19is made, had the right to sell such land; for, restrictions are placed bythis sub-section on the right of such person to sell such land.
Ownership is the right which a person has in a thing to possess it, touse it and take the fruits, to destroy it. and to alienate it. These rightshave been described by the text writers as: jus utendi. jus fruendi, andjus abutendi-Grotius 2.3.9; Voet 6.1.1. Wille. in his book on thePrinciples of South African Law (3rd Ed.) discusses at page 190 the"Legal Effects of Ownership" as follows;
"The absolute owner of a thing has the following rights in thething
to possess it;
to use and enjoy it; and
to destroy it, and
to alienate it";
and, in discussing the right to possession, states, also at page 1 90;
"the absolute owner of a thing is entitled to claim the possessionof it; or, if he has the possession he may retain it. If he is illegallydeprived of his possession, he may by means of vindicatio orreclame recover the possession from any person in whosepossession the thing is found. In a vindicatory action the claimantneed merely prove two facts, namely, that he is the owner of thething and that the thing' is in the possession of the defendant"
At page 193. Wille states, in regard to the-Right of Use andEnjoyment:
"The owner of a thing has a right to use and enjoy it, including the
right to take the fruits of it. Such use, however, is subjectto
legislative restrictions in many cases, and also subject to the rulethat an owner of property may not infringe the legal rights of otherpersons, sic utere tuo ut alienum non laedas. If an owner's right ofuse or enjoyment are infringed he has appropriate legal remedies".
The Right of Destruction is discussed by Wille. at page 201, as:
"An owner has the right of altering and destroying his property forhe has the jus abutendi. The right of destruction; however, existsonly if not forbidden by law". In regard to the right of alienation, Willestates at page 202: "the absolute owner of a thing is entitled toalienate, that is, transfer the dominium in it; or he may grant toanother person any lesser real right in it, and consequently he maylet it, or mortgage it, or grant a praedial or personal servitude overit"
Having regard to what has been stated earlier, and having regardalso to the circumstances that the Commission renounces all rights ithad in respect of such land it seems to me that the person, in whosefavour a statutory determination, such as P6. is made, would, uponthe making of such a determination, become possessed of thoseattributes-viz: the right to possess, to take the income, and to dealwith it in any way, including alienation and even destruction, so long asit is not illegal.-which are, in law, the essence of ownership.
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The nature and the scope of an action rei vindicatio has beenconsidered and clarified in several decisions of the Supreme Court ofthis Island. In the case of Abeykoon Hamine v. Appuhamy (2), Dias, S.P. J. quoted with approval the decision of a Bench of four judges in DeSilva v. Goonetilleke (3) where Macdonell, C.J. said:
"There is abundant authority that a party claiming a declaration oftitle must have title himself. 'To bring the action rei vindicatioplaintiff must have ownership .actually vested in him"-1 Nathan
p.362, s. 593 This action arises from the right of
dominium The authorities unite in holding that plaintiff must
show title to the corpus in dispute, and that if he cannot, the actionwill not lie".
In the following year Dias, S. P. J.. once again affirmed this principle inthe case of Peeris v. Savunhamy (4) when he stated that, in an actionfor declaration of title, where the defendants are in possession, theburden lies on the plaintiff to prove that he has dominium to the land indispute. Gratiaen, J. too reiterated'this principle, in the case ofPathirana v. Jayasundera (5) in this way:
"In a rei vindicatio proper the owner of immovable property isentitled, on proof of his title, to a decree in his favour for therecovery of the property and for the ejectment of the person inwrongful occupation. 'The plaintiff s ownership of the thing is of thevery essence of the action'. Maasdrop's Institutes (7th Ed.) Vol. 2,96".
This principle was re-affirmed once again by Gratiaen, J., in the case ofPalisena v. Perera (6) where the plaintiff came into court to vindicatehis title based upon a permit issued under the provisions of the land- Development Ordinance (Chap. 320). In giving judgment for theplaintiff, Gratiaen, J. said:
"a permit-holder who has complied with the conditions of his
permit enjoys, during the period for which the permit is valid, asufficient title which he can vindicate against a trespasser in civilproceedings. The fact that the alleged trespasser had prevented himfrom entering upon the land does not afford a defence to theaction"
In a vindicatory action the plaintiff must himself have title to theproperty in dispute: the burden is on the plaintiff to prove that he hastitle to the disputed property, and that such title is superior to the title,if any, put forward by the defendant in occupation The plaintiff can'and must succeed only on the strength of his own title, and not uponthe weakness of the defence.
On a consideration of the foregoing principles-relating to the legalconcept of ownership, and to an action rei vindicatio -it seems to methat the plaintiff-respondent did, at the time of the institution of theseproceedings, have, by virtue of P6, "sufficient" title which she couldhave vindicated against the defendants-appellants in proceedingssuch as these.
Alt-hough reference was also made, during the hearing before thisCourt, to the provisions of sec. 8 of this Law, the issues arising inthese proceedings can, however, be decided without having recourseto the provisions of sec. 8, which said section could moreappropriately be considered in proceedings directly connected withagricultural land owned by a private company.
For the foregoing reasons, I am of' opinion that theplaintiff-respondent’s action is entitled to succeed.
The appeal of the defendants-appellants is, accordingly, dismissedwith costs.
SHARVANANDA, C.J. – I agree.
WANASUNDERA, J. – I agree.
ATUKORALE, J. – I agree.
TAMBIAH, J. – I agree.
' Appeal dismissed.